New Research Supports the Notion That There’s No Such Thing as a “Consensual” Police Encounter

The U.S. Supreme Court has ruled that police officers can briefly detain and search a person if they have a reasonable, articulable suspicion that he or she is committing, has committed, or is about to commit a crime. But cops need no such reasonable, articulable suspicions to engage people in consensual encounters: interactions that a reasonable person would feel free to decline or terminate at any time. Ordinary people are free to stop and talk to strangers, the thinking goes. Why should police officers be denied the same privilege?

And yet, as I’ve writtenbefore, a consensual police encounter is often anything but. Cops have guns, and handcuffs, and the power to arrest you or make your life difficult if you are rude or uncooperative. If a cop asks for a moment of our time, most of us will automatically give it, even if we know that we technically have the right to refuse.

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This seems obvious, if you think about it. But there hasn’t been much research done to substantiate the theory. A new article in the Florida Coastal Law Reviewattempts to fill that gap. The article, titled “Testing Judicial Assumptions of the ‘Consensual’ Encounter: An Experimental Study” (it’s not yet online), provides some evidence supporting the contention that consensual police encounters are often less consensual than they seem.

Authors Alisa L. Smith, Erik Dolgoff, and Dana Stewart Speer engineered unexpected encounters between 83 undergraduate students at a “medium-sized, southern private university” and various campus security officers, who were instructed to approach the students and request a conversation in which they would ask for the students’ names, identification, and reasons for being on campus. The security officers did not openly state that the conversation was voluntary. But Smith and her co-authors note that if “at any point during the encounter a participant ignored, walked away from, or raised questions about the encounter, security was instructed to do nothing or advise the passersby that they were under no obligation to comply.”

Security never got the chance. Every single student in the study complied with the officers and answered all their questions. None of them offered any resistance. Why were the students so docile? Out of respect for authority, primarily:

• “I did not [walk away or ignore him] because he’s my authoritative figure and I was always taught to listen to authority.” (Respondent 8)

• “Out of respect I guess.” (Respondent 11)

• “He’s security. He has authority.” (Respondent 27)

• “It’s security. You do what they say.” (Respondent 28)

• “It’s a hierarchy. They are in charge.” (Respondent 29)

• “He has authority over me.” (Respondent 31)

Now, “respect for authority” wasn’t the only reason why the students decided to talk to the security officers. (Some students said they just wanted to avoid conflict; some said they had no reason not to talk to the officers, because they were doing nothing wrong.) And there are limits to what can be extrapolated from this study. The subjects were all between 18 and 21 years old, which likely skewed the results; a wider range of ages may well have led to a wider range of reactions. Also, it’s possible that the subjects might have reacted differently, or out of different motivations, if they had been approached by, well, real cops rather than campus security officers. More research is clearly warranted.

But as Smith and her co-authors note, the results of the study still “show that judicial assumptions are flawed about the reactions of reasonable, innocent people during ‘consensual’ encounters with police.” This paper suggests, at least preliminarily, that the “consensual” police encounter is a fiction. And with more empirical research like this, maybe the courts will start rethinking consensual encounters, too.